Dugan's Estate, In re
| Decision Date | 17 December 1957 |
| Docket Number | No. 7635,7635 |
| Citation | 309 S.W.2d 137 |
| Parties | In the Matter of the ESTATE OF Jerrold William DUGAN. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Movant-Appellant, v. Joel DAVIS, Public Administrator of Jasper County, Missouri, Administrator, Respondent. |
| Court | Missouri Court of Appeals |
Harold L. Harvey and R. W. Yost, St. Louis, McReynolds, Flanigan & Flanigan, John H. Flanigan, Carthage, for appellant.
Emerson Foulke, Joplin, for respondent.
This is an appeal from a judgment dismissing an appeal from probate court.
On March 30, 1956, Joel Davis, Public Administrator of Jasper County, made application for letters of administration on the estate of Jerrold William Dugan, deceased. Such application recited that the intestate was at the time of his death a resident of the State of Kansas and that the probable value of his estate was personal, $100, real estate, none. The names and addresses of his heirs were a father and mother, both resident in Kansas. On the same day said public administrator was ordered to take charge of the estate and letters of administration were issued. Both the order and letters refer to the deceased as 'late of the County of Jasper, State of Missouri.' The order recites that the deceased died in Jasper County, Missouri. Notice of letters issued by the clerk recites the fact that the attorney for the estate is James A. Dooley v. Chicago, Illinois. A contract between Public Administrator Davis and Mr. Dooley, the attorney, executed on the same day the letters were issued, provided for the employment of Mr. Dooley as attorney to prosecute a claim against the Missouri Pacific Railroad because of an accident which resulted in the death of Jerrold William Dugan on the 6th day of September, 1955, at or near Chetopa, Kansas. Such contract was approved by the probate court on the same date, On April 10, 1956, the public administrator filed his inventory and appraisement, wherein real estate was listed as 'none' and personal property was listed as 'none, except an action for damages for the wrongful death of the deceased against the Missouri Pacific Railroad Company,' for which no value was stated.
On September 27, 1956, the Missouri Pacific, appellant here, filed its motion to cancel and revoke the letters theretofore issued to the public administrator. This motion recited in substance the following: That the deceased was a resident of Kansas; that, as shown by the inventory, the only personal property is the wrongful death action hereinbefore mentioned; that subsequent to the granting of letters the public administrator commenced an action in Cook County, Illinois, for the wrongful death of Dugan, which action is still pending, and that movant has an interest in attacking the validity of the letters for such reason. Such motion further pleaded that the sole purpose in obtaining the letters was to bring the action in Illinois and prevent removal to the district court of the United States by establishing an apparent lack of diversity of citizenship, since the public administrator is a resident of Missouri and the Missouri Pacific is a Missouri corporation. The motion then states that the appointment of the public administrator is void for want of jurisdiction, because decedent left no assets in the state, and makes what we construe as a claim of some species of legal fraud in the procurement of such letters by the abuse of Missouri process. This motion was overruled by the probate court. The Missouri Pacific appealed to the circuit court. There the respondent filed motion to dismiss the appeal, and such motion to dismiss was finally sustained upon the stated ground that the Missouri Pacific is not an interested party and has no standing in court. The Missouri Pacific has appealed.
We are of the opinion that appellant's motion is a direct and not a collateral attack, this in view of the provisions of section 472.150, V.A.M.S., Laws of 1955, section 16, page 396, and the fact that section 481.030 RSMo 1949, V.A.M.S. (relating to terms of court) has been repealed and section 472.050, V.A.M.S., Laws of 1955, section 6, page 393, has been enacted in lieu thereof. Hence the Missouri decisions involving after-term motions under the old probate code are not necessarily applicable.
The first question is, is the refusal to revoke letters an appealable order? We think so. In re Scott's Estate, 237 Mo.App. 1260, 173 S.W.2d 115, and cases cited; Annotation 37 A.L.R.2d 751, 758.
Our next and most serious question is, does the Missouri Pacific have such an interest in the subject matter of the litigation as will permit it to prosecute the motion and to appeal from its overruling? This question divides itself into (a) does appellant have such interest as will give it standing to interpose and set up claim of invalidity of the issuance of letters and appointment of administrator?; (b) does it fall within the group or class of persons who have such an interest which permits an appeal? We shall attempt to deal with these questions in order, although the decision as to (a) must of necessity have some effect on question (b).
As to whether a contingent debtor, defendant in a lawsuit brought by the administrator, can attack the validity of the appointment of such administrator there is considerable confusion, conflict, and dissent. Annotation 123 A.L.R.2d 1225; 33 C.J.S. Executors and Administrators Sec. 85 b, p. 1022; 23 C.J., Executors and Administrators, section 278, page 1104. In a number of the decisions it is held that the debtor has no interest which gives him standing in court. In re Walsh's Estate, 131 N.J.Eq. 376, 25 A.2d 424; Yazoo & M. V. R. Co. v. Jeffries, 99 Miss. 534, 55 So. 354; In re Stone's Estate, 173 Iowa 371, 155 N.W. 812; In re Wertz' Estate, Pa., 6 Dist. & Co. R.2d 429, 5 Fiduciary 516, 69 York Leg.Rec. 69; In re Trost's Estate, 292 Ill.App. 60, 10 N.E.2d 857; In re Estate of Hardy, 35 Minn. 193, 28 N.W. 219; In re Mayo's Estate, 60 S.C. 401, 38 S.E. 634, 54 L.R.A. 660; Missouri Pac. R. Co. v. Bradley, 51 Neb. 596, 71 N.W. 283; Brinkley v. Allen, 200 Ark. 1147, 143 S.W.2d 187; In re Barmeier's Estate, 248 App.Div. 636, 288 N.Y.S. 318; City of Bessemer v. Clowdus, 258 Ala. 378, 63 So.2d 355; Southern Ry. Co. v. Moore, 158 S.C. 446, 155 S.E. 740, 73 A.L.R. 582; In re Estate of Upton, 199 Wash. 447, 92 P.2d 210, 123 A.L.R. 1220. 1 An expression common to such cases is that the debtor has no interest in the estate except an interest to hinder or destroy his adversary.
But other authority which we consider to be better reasoned holds that if the appointment is void the debtor has such an interest as will permit him to assert such invalidity in a direct proceeding. Cooper v. Gulf, C. & S. F. Ry. Co., 41 Tex.Civ.App. 596, 93 S.W. 201; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284; Lee v. Allen, 100 Md. 7, 59 A. 184; Louisville & N. R. Co. v. Herb, 125 Tenn. 408, 143 S.W. 1138; McCoubrey v. Pure Oil Co., 179 Okl. 344, 66 P.2d 57; Mallory's Estate, v. Burlington & M. R. Co, 53 Kan. 557, 36 P. 1059. 2 The composite reasoning of such holdings is that the debtor has an interest in knowing that the person with whom he settles or who may obtain judgment against him is lawfully entitled to receive such money or to obtain and enforce such judgment; otherwise the debtor might be put in a position of being required to pay an unauthorized person once and later be required to pay again upon demand or suit of validly appointed administrator.
Assuming that payment is made to an administrator appointed by a court having jurisdiction of the subject matter and power to make the appointment, and that there be a mere voidable irregularity in the appointment or qualification of such administrator, then it would appear that the debtor would be safe in dealing with such administrator. Such appointment might be voidable at the objection of some interested person, but the subsequent vacation of such appointment would not affect the validity of acts done under it in the meantime. Section 472.150, V.A.M.S., Laws of 1955, section 16, page 396.
But suppose the court has no jurisdiction of the subject matter, the res, which in this instance is the estate itself. To use the language of McIver, Judge, in his dissenting opinion in In re Mayo's Estate, supra, 38 S.E. loc. cit. 639:
'* * * there could be no proceeding in rem unless there was a res; and the res in a case like this would, as I understand it, be the estate of the intestate; and, if there is no estate of the intestate within the jurisdiction of the court, * * * then there would be no res, and consequently no proceeding in rem.' 3
If such jurisdiction did not exist at the inception, life and validity could not be breathed into that which had no existence. If the court has no jurisdiction or power to appoint a public administrator, then the issuance of letters to such administrator would be void. Donelson's Estate v. Gorman, 239 Mo.App. 300, 192 S.W.2d 29; see State ex rel. Smith v. Hull, Mo.App., 147 S.W.2d 214, 216. And if such appointment is void, the debtor has a pecuniary interest in seeing that he is not to be harassed by some person who is a complete stranger and without authority in law. And if the appointment is void, then it is not inconceivable that persons who are beneficiaries under the Kansas death statute might proceed for the appointment of an administrator in that state and bring action against the defendant in regard to the same thing for which the present administrator maintains his action in Illinois. See Ellenberg v. Arthur, 178 S.C. 490, 183 S.E. 306, 103 A.L.R. 437; Union Mutual Life Insurance Co. v. Lewis, 97 U.S. 682, 24 L.Ed. 1114.
In Donaldson v. Lewis, 7 Mo.App. 403, a public administrator was appointed and an acknowledged debtor moved for revocation of the authority of the administrator on the ground that the creditor was not shown to be dead. It was held that while...
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